Topic: Constitutionalism AM-I-Constitutional Law By: Ahmed Ali, Symbiosis Law School, ma | tIntroduction stitutionalism in its topical sense is the idea that government ought to be legally ited i in its powers, and that its very legitimacy depends on its abiding by the same. raises some tricky questions pertaining to the legal and philosophical undations of the state. How can a government be limited by law if law itself is the reation of government? Does this mean that a government ‘self-limits’? Is this even imitation in the real sense? f meaningful limitation is indeed to be possible, perhaps constitutional constraints must somehow be ‘entrenched’, that is, resistant to change or removal by those whose powers are constrained? Perhaps they must not only be entrenched, but enshrined in written rules. If so, how are these rules to be interpreted? In terms of their original, public meaning or the intentions of their authors, or in terms ssibly ever-developing, values and principles they express? How, in the e1 x's these questions depends crucially on how one conceives the nature,Sovereign versus Government scussing the history and nature of constitutionalism, a comparison is often drawn between Thomas 's and John Locke who are thought to have defended, respectively, the notion of constitutionally imited sovereignty versus that of sovereignty limited by the terms of a social contract containing ante Inutations, But an equally good focal point isthe English legal theorist John Austin who. ‘Hobbes, thought that the very notion of limited sovereignty is incoherent. For Austin, all law is the sons, and so the notion that the sovereign could be of a sovereign person or body of s a sovereign who is self-binding, who commands him/her/itself. But no one can ty is, for Austin ited by law require himself, except in some figurative sense, so the notion of limited sovereign i Hobbes), as incoherent as the idea of a square circle. Though at one time this feature of Austin’s jeory had some surface plausibility when applied to the British system of govemment, where marliament was often said to be supreme and constitutionally unlimited, it faces obvious difficulty then applied to most other constitutional democracies such as one finds in the United States, Canada, Mexico and Germany, where iis abundantly clear that the powers of government are legally limited by a constitution. Austin’s answer to this apparent weakness in his theory was to appeal to popular sovereignty, the idea that sovereign power ultimately resides in ‘the people’, that is, the population at large. Government bodies—e.g., Parliament, the President or the judiciary—can be limited by Constitutional lawv, but the sovereign people remain unlimited in their powers to command. is appeal to popular sovereignty provides Austin with an adequate means of deali itutional democracies is questionable. For Austin’s sovereign is suj to be ad or group of individuals whose commands ‘o the bulk of the population constitute | ‘ ‘commanders with the people themselves, then we seem inexorably ‘identified by HLL.A. Hart—the commanders are commanding the